City of Cincinnati v. Correll, 29230.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: BELL
• Citation: 49 N.E.2d 412,141 Ohio St. 535
• Parties: CITY OF CINCINNATI v. CORRELL.
• Docket Number: No. 29230.,29230.
• Decision Date: 02 June 1943

141 Ohio St. 535
49 N.E.2d 412

CITY OF CINCINNATI
v.
CORRELL.

No. 29230.

Supreme Court of Ohio.

June 2, 1943.

Arthur Correll was convicted of violating a city ordinance prohibiting operation of barber shops during certain hours, the conviction was affirmed by the Court of Appeals, 45 N.E.2d 152, and he appeals.-[Editorial Statement.]

Reversed and rendered.

ZIMMERMAN, J., WEYGANDT, C. J., and WILLIAMS, J., dissenting.

[49 N.E.2d 413]

Syllabus by the Court.

1. Section 3, Article XVIII of the Ohio Constitution, grants authority to municipalities to adopt and enforce within their limits such local police regulations as are not in conflict with general laws. A municipal ordinance passed under such authority, to be valid, must not be arbitrary, discriminatory, capricious or unreasonable and must bear a real and substantial relation to the health, safety, morals or general welfare of the public.

2. A municipal ordinance limiting and fixing the hours during which a barber shop may remain open for business with the public is not a valid exercise of the police power and is in contravention of the provisions of the Ohio Constitution. Wilson v. City of Zanesville, 130 Ohio St. 286, 199 N.E. 187, overruled.

Appeal from Court of Appeals, Hamilton County.

Arthur Correll, defendant, appellant herein, was arrested on January 31, 1942, charged with the violation of Section 523-1(a), Code of Ordinances of the city of Cincinnati.

The ordinance reads as follows:

‘Section 523-1. It shall be unlawful for the owner of any barber shop or for any agent or employee of such owner to permit such barbershop to be open for the business of barbering for revenue, pay, free, or otherwise, on Sundays, New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day or at any times other than the following:

‘(a) From 8:00 o'clock a. m. to 7:00 o'clock p. m. on Mondays, Tuesdays, Wednesdays, Thursdays and Fridays, when they do not precede any of the aforementioned holidays:

‘(b) From 8:00 o'clock a. m. to 8:00 o'clock p. m. on Saturdays and on any other week day when such week day immediately precedes any of the aforementioned holidays.’

The specific charge made in the affidavit is the violation of subsection (a) of the ordinance.

A demurrer was filed to the affidavit by defendant upon the ground that the ordinance ‘is unconstitutional and violates the Constitution of the state of Ohio and the United States.’

The court overruled the demurrer and upon trial the defendant was found guilty as charged and sentenced to pay a fine of $15 and costs. Appeal upon questions of law was taken to the Court of Appeals of the First Appellate District where the judgment was affirmed upon the authority of Wilson v. City of Zanesville, 130 Ohio St. 286, 199 N.E. 187. The case is here upon appeal as of right.

John D. Ellis, City Sol., Ed. F. Alexander, and Robert J. Paul, all of Cincinnati, for appellee.

George Weller, of Cincinnati, for appellant.

BELL, Judge.

The single question presented by this record is the constitutionality of an ordinance, Section 523-1, Code of Ordinances of the city of Cincinnati, making it unlawful to permit barber shops to be open for business during hours other than specified therein.

The city of Cincinnati is a home rule city governed by a charter duly adopted in accordance with the provisions of Section 7, Article XVIII of the Ohio Constitution.

Section 34, Article II of the Ohio Constitution reads as follows:

‘Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power.’

The word ‘laws' as used in this section does not embrace municipal ordinances, but defines the legislative power of the General

[49 N.E.2d 414]

Assembly only. Village of Brewster v. Hill, 128 Ohio St. 354, 191 N.E. 366;Wilson v. City of Zanesville, 130 Ohio St. 286, 199 N.E. 187.

This ordinance, passed by municipal authority, cannot be sustained under that provision of the Constitution.

This leaves the question of whether the ordinance can be sustained as a valid exercise of the police power.

In the case of Wilson v. City of Zanesville, supra, this court considered an ordinance passed by the city of Zanesville which in all essential respects is identical with the ordinance here in question. A majority of the court reached the conclusion that the ordinance was a valid exercise of the police power not in conflict with constitutional limitations or general laws.

There are two strong dissenting opinions in that case.

We have concluded to re-examine this question.

The Constitution must be read and construed in its entirety so as to harmonize and give force and effect to all its provisions.

Article I of the Constitution, known as the Bill of Rights, contains twenty sections defining rights of the people, collectively and individually, and guaranteeing the enjoyment of such rights.

Section 1, Article I provides as follows: ‘All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.’

The rights guaranteed by Article I of the Constitution are not unrestricted rights but are subject to limitation or abrogation to such extent as may be necessary to promote the health, safety, morals or general welfare of society as a whole.

Regulations which limit or abrogate these guaranties are sustained by virtue of a power inherent in government, commonly called the police power. The term police power, although generally understood and universally recognized, is somewhat hazy and ambiguous and not subject to precise or even accurate definition.

In Ohio the grant of police power to a municipality is found in Section 3, Article XVIII of the Constitution, which reads as follows: ‘Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.’

Prior to 1912 municipal police power was derived through legislative action; since that time police power is derived from the people through the Constitution.

Regulations passed by virtue of the police power generally are limitations upon or abrogations of constitutionally guaranteed rights and such regulations, to be valid and enforceable, must conform to certain well defined and well understood standards.

From a consideration of many cases upon the subject of police power the standards to determine the validity of this class of legislation may be stated thus:

Laws or ordinances passed by virtue of the police power which limit or abrogate constitutionally guaranteed rights must not be arbitrary, discriminatory, capricious or...